M. MEHBOOB AHMAD, J.-Briefly stated the facts leading to this appeal are that Sana Muhammad Khan, Mst. Sarwat Begum and Mst. Nighat Kausar sold 1064--kanals of agricultural land comprised of Khewat No. 52, Khatauni Nos. 377 and 378, situate in village Marulianwala, Tehsil Bhalwal, District Sargodha to Muhammad Afzal etc., respondents Nos. 1 to 39. The mutation of this oral sale was sanctioned on 14-11-1973 under No. 2594. The consideration and sale price of the land as given in the mutation aforementioned is Rs. 8,62,500. According to the mutation, amongst the vendees, there is a group of four persons, namely Dost Muhammad, Kbuda Bakhsh, Mukhtar Ahmad and Allah Yar sons of Muhammad Abdullah whose share is shown as meaning thereby that the share of this group was 432/4257 and that of Mukhtar Ahmad vendee was -- of 432/4257 i.e 108/4257.
2. The appellant, Ahmad Khan, filed a suit on 13-11-1974, claiming possession of the land aforementioned through pre-emption. This suit of the appellant was registered as No. 549 of 1974.
The suit as originally filed was against respondents Nos. 1 to 38 only and Mukhtar Ahmad the aforementioned vendee was not included therein as defendant. An application was filed by Ahmad Khan on 21-12-1974 under Order 1, rule 10, C: P. C. For impleading Mukhtar Ahmad as a defendant stating that the latter was one of the vendees along with his other three brothers and his name had been omitted inadvertently and that he was a necessary and proper party to the suit, he should be impleaded as a defendant. This application was allowed by order dated 20-5-1975 of the learned Civil Judge subject to the objection, that the other party may have to the impleading of Mukhtar Ahmad as defendant.
3. The appellant-plaintiff claimed in the suit that he being an agnate, an heir under Shariat and a near relative of the vendors had a preferential right to purchase the land as against the defendants.
Noor Muhammad and seven others (now respondents Nos. 40 to 47 in this appeal) had also filed a suit to pre-empt the sale of .The land in dispute. Their suit was registered as No. 531 of 1974. In this suit, the plaintiffs, namely Noor Muhammad, etc. Alleged, a .Preferential right of pre-emption as against the defendants claiming themselves as khatadars and owners in the village. They also claimed preferential right on the above basis as against Ahmad Khan appellant who was made a party in their suit under order of the Court as defendant No. 40. The plaintiffs, Noor Muhammad etc., also alleged in their plaint that the real sale price paid was Rs. 4,73,000 only and that the consideration of Rs. 8,62,5C0 shown In the mutation was exaggerated and intended to forestall any pre-emption of the sale.
4. In the suit of Ahmad Khan appellant (No. 549 of 1974) the trial Court also directed the impleading of Noor Muhammad etc. (plaintiffs in Suit No. 531 of 1974) to be impleaded as defendants Nos. 40 to 47 by order dated 20-5-1975.
5. Since in both the suits mentioned above the right of pre-emption was claimed by the two sets of plaintiffs in respect of the same land regarding the same transaction of sale, the learned Civil Judge First Class. Sargodha, who was seized of the matter, ordered that as in both the suits the plaintiffs claimed better right of pre-emption than the vendees, the suit of Ahmad Khan be consolidated with the suit of Noor Muhammad etc. The amended plaint in the suit of Ahmad Khan was filed in the Court on 26-5-1975 after impleading respondents No. 39 and Nos. 40 to 47. Three sets of written statements have been filed to this amended plaint. One is by respondents Nos. 1 to 27, 31, 32 and 39. This is dated 25-6-1975 and has been filed in the Court on the same date. No objection in this written statement has been taken about the suit having been filed against respondent No. 39 after the expiry of the period of limitation prescribed under the law as also about the suit being hit by the principle of partial pre-emption. The other written statement is by respondents Nos. 40 to 47 in which the preliminary objection No. 1 pertains to the suit being barred by limitation as against respondent No. 39. There I s yet another written statement purporting to be from respondents Nos. 28 to 30 and Nos. 33 to 39. In this written statement, preliminary objections have been taken (Nos. 6 and 9) as to the suit being hit by the principle of partial pre-emption and of being barred by time against Mukhtar Ahmad and consequently against all the respondents.
This written statement is shown as verified on 4-6-1975 but had also been filed in the Court on 25- 6-1975. In this manner it would be seen that there are two written statements filed on the same date purporting to be from Mukhtar Ahmad respondent. Be that as it may, the learned trial Court after consolidation of the above-mentioned suits framed the following preliminary issues : "(I) Whether the suit of Ahmad Khan plaintiff is within time ? OPP.
(2) Whether the suit of Ahmad Khan plaintiff is for partial pro-emption? OPD."
6. Since the learned counsel for the parties made a joint statement before the trial Court that they did not want to lead any evidence on the issues framed, the issues being of legal nature, the learned trial Court decided the issues after hearing arguments of the parties It decided issue No. 1 against the appellant-plaintiff Ahmad Khan and held that his suit was not within time so far as it was against Mukhtar Ahmad respondent No. 39. Issue No. 2 was also decided by the learned trial Court against the appellant-plaintiff Ahmad Khan. It was held that on account of non-impleading of Mukhtar Ahmad respondent No. 39 as defendant in the suit within the time prescribed by law of limitation, the suit of Ahmad Khan plaintiff was a suit for partial pre-emption and as such it was barred by time as against the other respondents-defendants also.
7. In view of the above findings on the issues involved in the suit, the learned trial Court dismissed the suit of Ahmad Khan with costs, by its judgment and decree dated 17-7-1975. Feeling aggrieved by this decree dated 17-7-1975 passed by the learned Civil Judge First Class, Sargodha, Ahmad Khan, appellant, has preferred the present appeal.
8. Sheikh Ghias Muhammad the learned counsel for the appellant raised the following contentions before us against the impugned decree
(i) that the transaction of sale sought to be pre-empted in- the suit was a composite transaction by three vendors in favour of 39 different vendees in specified shares and that Mukhtar Ahmad respondent-vendee was included in one of the groups of the vendees which group had acquired share 432/4257 in the land in question and that his share would be -- of 432/4257 i.e 108/4257. He submitted that the principle of partial pre-emption would not be attracted in a case where the shares purchased by the vendees are specified in sale-deed of composite nature, and ,
(ii) that leaving out Mukhtar Ahmad as defendant was hot intentional but inadvertent. He stated that since the suit was for pre-emption of the whole of the transaction, the omission to place Mukhtar Ahmad in the forum of defendants in the suit was inadvertent and, thus, this is a case for amendment of the cause title only and as such covered by section 153, C. P. C: He submitted that section 22 of the Limitation Act and sub-rule (5) of rule 10 of Order I, C. P. C. Will not be attracted to the case in hand."
9. Elaborating his arguments he submitted that the doctrine of partial pre-emption is essentially based on the premises that the pre-emptors be restrained from exercising the right of pre- emption in respect of best portions of the property and leave the worst parts with the vendees. He further contended that this rule would apply only to those transactions which are contained in one deed and cannot be broken up or separated and that it would not be attracted to the cases where the shares sold are separately specified.
10. Applying the above basis to the case in hand, he submitted that the transaction in question though constituted of one mutation is not such as is not capable of being separated. He reiterated that, the total land sold is 1064-- kanals out of which the share of Mukhtar Ahmad vendor and his three other brothers is 432/4257 and out of this 432/4257 the share of Mukhtar Ahmad respondent- vendee comes to 108/4257 . He said that the share of Mukhtar Ahmad is, thus, capable of being segregated from the other land sale of which is sought to be pre-empted.
11. He also submitted that the appellant-pre-emptor had though inadvertently omitted initially to array Mukhtar Ahmad in the forum of defendants, he nevertheless had sought to pre-empt the whole of the sale transaction and on payment of the total price. He vehemently argued that the doctrine of partial pre-emption in the circumstances of the case is not applicable and it has been illegally and erroneously applied by the learned trial Court while dismissing the suit. In support of his first contention the learned counsel for the appellant relied upon the following authorities : Naunehar Singh v. Deputy Commissioner, Unao 47 I C 894, Ram Nath etc. v. Badri Narain etc. I L R 19 All. 148, Ude Ram etc. v. Atma Ram etc. AIR 1924 Lah 431, and Allah Rakha Khan etc. v. Kala Ram etc. 67 I C 872.
12. Mian Sher Alam Advocate, learned counsel for respondents Nos. 40 to 47, in reply to the arguments addressed by the learned counsel for the appellant, submitted that the principle of partial pre-emption is fully applicable to the cast in hand and that the mere specifying of shares in which the vendees have purchased the land is not a barometer for segregating the transaction into the shares so specified in the sale. He submitted that in a very similar situation the matter has been fully considered by the Supreme Court in case Abdullah and 3 others v. Abdul Karim etc. PLD 1968 SC 140. He submitted that in the case aforementioned, the Supreme Court has laid down that there can be no presumption as to the divisibility of the transaction merely on the basis of the recital in the deed that the vendees took the property in specified shares if the consideration was mentioned as a lump sum. He also relied upon Ahmad etc. v. Ghulam Haider 1972 SCMR 357 wherein their Lordships of the Supreme Court affirmed the law laid down by them in Abdullah etc. v.
Abdul Karim etc. He also relied upon Muhammad Shafi v. Allah Din etc. 153 I C 128 and Dhala v.
Khanun etc. 160 1 C 576.
13. It would be appropriate, at this stage, to refer to the authorities cited by the learned counsel for the parties in support of their contentions and to analyse them. Out of the four authorities cited by the learned counsel for the appellant, in the first one, i.e. Naunehar Singh v. Deputy Commissioner Unao which is by the Court of Judicial Commissioner, Oudh, it was held as under " The principle of denying a right of pre-emption, except as to the whole of the property sold, is that by breaking up the bargain, the pre-emptor may seek to take the best portion of the property and leave the worst part of it with the vendee. But where the share of each purchaser is separate and distinct, there is really no breaking-up of the bargain,"
14. The next citation Ram Nath etc. v. Badri Narain etc. Is by a Full Bench of the Allahabad High Court. In this decision, Sheobharos Rat v. Jiach Rai I L R 8 All. 462 though cited with approval has not been followed so far as it went on to illustrate that sales in which the interests of the vendees were not only separately specified qua shares but qua purchase money are not the only cases which can be held to be separable and divisible. In this respect it was held by the Full Bench of the Allahabad High Court as under : "In our opinion where in cases of this kind the sale-deed specifies the interest or share purchased, so that it shows what was the particular property purchased by each of the vendees, whether by definition of share or plot, the vendee co-sharer, who is a co-sharer of equal rights of pre emption with the plaintiff-co-sharer, cannot be disturbed in the rights acquired by him under the sale-deed, and it is immaterial whether the proportion of the purchase money found or to be found by each of the vendees is or is not specified in the sale deed."
The above-mentioned two cases support the contention raised on behalf of the appellant as to the non-applicability of the doctrine of partial pre-emption to the case in hand.
15. The next case cited is Ude Ram etc. v. Atma Ram etc. A IR 1924 Lah. 431. We do not think that this case supports the case of the appellant. The facts of this case are essentially different, the facts being that the vendee himself parted with a portion of the property and in such circumstances it was held that the vendee did not suffer in any way by plaintiff's not suing for the whole of it.
16. Allah Rakha Khan etc. v. Kali Ram etc. Is also not relevant for purposes of the controversy involved in the present. Suit. This case was of misdescription of land, sale of which was sought to be pre-empted. It was held that in cases where the earor is merely accidental and relates only to the description of the property, the pre-emptor is always allowed to amend his plaint.
17. On the other hand, the authorities cited by the learned counsel for the respondents are to the following effect.
18. The Lahore view as expressed in Muhammad Shafi v. Allah Din etc. Based on a large number of cases cited therein as it appears at page 129 of the citation is to the following effect : "it is no doubt true that it is mentioned in the sale-deed that the two vendees were to take the property in equal shares, but this does not make any difference, for there was no specification of the amount contributed by each vendee and a perusal of the deed shows that so far as the vendor was concerned, it was a single and indivisible bargain, and not' two distinct and divisible transactions which for the sake of convenience had been written on one piece of paper. It has been held in a long series of cases decided by the Punjab Chief Court and this Court during the last fifty years, that for purposes of pre-emption a sale transaction is regarded as indivisible in those cases, where the purchase money is paid in one lump sum without any specification of the amount paid by the various vendees, and the mere fact that the shares to be taken by the vendees respectively are specified in the sale deed does not alter the nature of the transaction, it being at most an arrangement among the purchasers inter se, which does not affect the vendor . . . . . In such cases the various vendees, taken together, are regarded as one single legal entity, and the omission of any one of them from the record is fatal to the suit."
19. In Dhala v. Khanun etc. The Lahore High Court has again held in the following terms : "In view of these rulings it is clear that the plaintiff is not entitled to treat the transaction as divisible, no terms being specified in the deed as regards individual payment of the money . . . ."
From the two cases cited above, it is clear that the Lahore High Court view has always been that a transaction of sale cannot be treated as divisible only if the shares of the vendees in which they have purchased the land are specified in the sale-deed.
20. Though there is a contrary view of the Allahabad High Court in the care cited by .The learned counsel for the appellant it will be of no avail to the appellant in the present case in that not only the view of the Lahore High Court is contrary thereto but also because there is an authoritative pronouncement of their Lordships of the supreme Court in the case referred to above and cited by the learned counsel for the respondents, namely Abdullah and 3 others v. Abdul Karim etc. The dictum of their Lordships of the Supreme Court in the words used in the citation is as under :- "This argument cannot, however, be accepted in the absence of any proof that payment of the price was made by the various vendees of this group in specified amounts. There can be no presumption as to the divisibility of the transaction merely on the basis of the recital in the deed that the vendees took the property in specified shares if the consideration was mentioned as a lump sum."
21. As already pointed out above, the view as expressed in Abdullah etc. v. Abdul Karim etc. Has been affirmed in Ahmad etc. v. Ghulam Haider.
22. Sheikh Ghias Muhammad, learned counsel for the appellant, in reply, cited Ala Muhammad v.
Ahmad Bakhsh etc. PLD 1971 Lah. 401. This is a decision by a Division Bench of this Court wherein Abdullah etc. v. Abdul Karim etc. Has been distinguished.
23. In Ata Muhammad v. Ahmad Bakhsh etc. The land comprised of three khatas was sold through one sale-deed to two co-sharers of` the plaintiff in one khata only in which the third vendee had no land. The trial Court decreed the suit in respect of land of that khata on payment of full price. The lower Appellate Court modified the decree to the extent that payment was to be made proportionately. In the second appeal before the High Court on the basis of the Supreme Court authority, namely Abdullah etc. v. Abdul Karim etc. It was urged that the sale being indivisible the suit should have been decreed as a whole. The Supreme Court authority was interpreted, thus, at page 407 :- "According to our humble interpretation of their Lordships judgment it does not make such a proof as the sole criterion of divisibility of a transaction."
In the above quotation from Ata Muhammad v. Ahmad Bakhsh etc. Are significant and in our opinion would mean that though the mention of contribution of sale price by different vendees is not the sole criterion it is nevertheless one of the factors which would have to be taken into consideration to determine as to whether the sale is divisible or not. This authority also therefore does not advance the case of the appellant.
24. In the light of the above discussion we are of the opinion that in cases where one of the vendees is omitted from being impleaded as a defendant in a pre-emption suit in order to see whether a transaction of sale sought to be pre-empted is divisible or not two requirements at least have to be met with, firstly, that there should be specified shares in which the vendees have purchased the land, and, secondly, that there is proof positive of the specific and separate contribution made by each of the vendees toward the sale price.
25. The first contention raised by the learned counsel for the appellant is therefore not tenable and consequently the finding of the learned trial Court on issue No. 2 is upheld.
26. In respect of the second contention raised by the learned counsel for the appellant when it was put to him that if his argument is accepted would it not tantamount to defeat the vested right that had accrued to the vendee-respondents by efflux of time and that such a proposition would negative the basic effect of section 22 of the Limitation Act and of Order 1, Rule 10, C. P. C., he very candidly conceded that his contention may result in a situation as observed by the Court. He further submitted that he was not able to support his this contention by any authorities on the subject.
27. On the other hand, on the question of the suit being barred by time having been filed after the expiry of the period of limitation as against Mukhtar Ahmad respondent, the learned counsel for the respondents relied on the following authorities -:- Jawala Das etc. v. Gopal Lal 88 I C 555, Niaz Ali Khan etc. v. Muhammad Afzal Khan 73 1 C 344, Sher Singh etc. v. Sundar Singh etc. AIR 1930 Lah. 747, and Ram Kinker Biswa s v. Akhil Chandra Chaudhuri I L R 35 Cal. 519.
28. As regards the second contention raised by the learned counsel for the appellant which relates to issue No. 1, suffice it to say that it will b much too much hazardous to lay a proposition giving protection of section 153, C. P. C. To a case of this nature in the teeth of the specific provisions governing the subject as contained in Order 1, rule 10, C. P. C. Read with section 2 of the Limitation Act. The second contention raised b the learned counsel for the appellant also therefore fails.
As a result we dismiss this appeal with costs.